BHAGWANDAS MOTIRAM Vs. MOTIRAM RAGHO

JUDGEMENT

(1.) ON April 1, 1956, respondent No. 1, to whom I will hereafter refer as the respondent, made an application to the Sub -Divisional Officer, Khamgaon, under Section 19(2) of the Berar Regulation of Agricultural Leases Act. In his application, he contended that he had cultivated the land in dispute in 1955 -56 and that he had, therefore, acquired the rights of a protected lessee under the above Act. He also alleged that he had been dispossessed by the second, third and the fourth petitioners. The land belongs to petitioner No. 1. Petitioner No. 2 is the managing agent of petitioner No. 1 and looks after the land. Petitioners Nos. 3 and 4 are said to be lessees from the first two petitioners. The petitioners denied that the land had been leased to the respondent. Their case was that they even did not know him. The Sub -Divisional Officer dismissed the application made by the respondent. On appeal, the Additional Deputy Collector reversed the order made by the Sub -Divisional Officer and directed that possession of the land should be handed over to the respondent. Against that order, the petitioners filed a second appeal before the Bombay Revenue Tribunal. The second appeal was filed on June 29, 1957. During the pendency of this appeal, on December 29, 1958, the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, came into force. Sub -section (7) of Section 132 of this Act repealed the Berar Regulation of Agricultural Leases Act, under which the proceedings had originally been instituted by the respondent. Clause (a) in Sub -section (5) of Section 132 provides that all proceedings for the recovery or restoration of the possession of the land under the provisions of the enactments so repealed, pending on the date of the commencement of this Act before a Revenue Officer or in appeal or revision before any appellate or revising authority shall be deemed to have been instituted and pending before the corresponding authority under this Act and shall be disposed of in accordance with the provisions of this Act. In view of these provisions, the appeal filed before the Bombay Revenue Tribunal had to be disposed of in accordance with the provisions of the new Tenancy Act. This position is not disputed before us. The Revenue Tribunal took the same view, but instead of disposing of the appeal in accordance with the provisions of the new Act, the Tribunal set aside the orders made by the revenue officers and remanded the matter for a fresh decision, in accordance with the provisions of the Tenancy Act, after giving the parties an opportunity to amend their pleadings and to adduce additional evidence, if they wished to do so. This order made by the Revenue Tribunal is being challenged before us.

(2.) IT has been contended by Mr. Kalele, who appears on behalf of the petitioners, that it was not necessary for the Revenue Tribunal to remand the matter for a fresh enquiry without considering whether it could not dispose of the appeal in accordance with the provisions of the Tenancy Act. It seems to us that this contention of Mr. Kalele must be accepted. Sub -section (3) of Section 132 requires that proceedings of the nature specified therein shall be disposed of in accordance with the provisions of the Act. It does not wipe out the previous proceedings or lay down that all the previous orders mustbe set aside and that, in every case, there must be a fresh enquiry. In each case, therefore, it is necessary for the authority concerned to consider whether the matter before it cannot be disposed of in accordance with the provisions of the Act, on the evidence already led or the findings already recorded. If the authority considers that additional evidence is necessary, it may take or call for such evidence. If after considering the evidence on record, the authority finds that under the new Act certain issues arise, which cannot be disposed of on the evidence already produced, it may, instead of taking or calling for fresh evidence, remand the matter for a fresh enquiry. In each case, however, the authority must examine the materials already on record and consider whether the matter cannot be disposed of on those materials in accordance with the provisions of the new Act. If it comes to the conclusion that it cannot dispose of the matter in accordance with the provisions of the new Act on the evidence already led or the findings already recorded, it may adopt one or other of the courses pointed out above. But it is not necessary that every matter should be remanded for a fresh enquiry.

(3.) WE , therefore, set aside the order made by the Bombay Revenue Tribunal on September 15, 1959, and direct that the Tribunal should hear the appeal filed by the petitioners and dispose it of in the light of the observations contained in this judgment. No order as to costs.